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Charles Fried, a prominent professor at Harvard Law School, testified today before the Senate Judiciary Committee. Fried argued that PPACA's individual mandate is constitutional. He also thinks it would be constitutional for Congress to force you to buy vegetables. Here is an exchange he had with Sen. Dick Durbin, Chairman of the Judiciary Committee, less than an hour ago:

Sen. Durbin: The point raised by Senator Lee – the “buy your vegetables, eat your vegetables” point? I’d like you ask to comment on that because that is the one I’m hearing most often. By people who are saying “Well, if the government can require me to buy health insurance, can it require me to have a membership in a gym, or eat vegetables?” We’ve heard from Professor Dellinger on that point, would you like to comment?

Prof. Fried: Yes. We hear that quite a lot. It was put by Judge Vinson, and I think it was put by Professor Barnett in terms of eating your vegetables, and for reasons I set out in my testimony, that would be a violation of the 5th and the 14th Amendment, to force you to eat something. But to force you to pay for something? I don’t see why not. It may not be a good idea, but I don’t see why it’s unconstitutional.

UPDATE: TalkingPointsMemo has posted Fried’s opening testimony to the Committee. In that testimony, Fried repeats his endorsement of the vegetable-and-gym mandate:

As for the veggies, I suppose such forced feeding would indeed be an invasion of personal liberty, but making you pay for them would not, just as making you pay for a gym membership which you can afford but do not use would not.

Fried also argues that inactivity is within Congress’ purview, because, in Jacobson v. Commonwealth of Massachusetts (1905), the Supreme Court held unanimously that a state government could impose a fine against someone who refused to take a smallpox vaccine. It’s not obvious to me how the power of a state government to administer vaccines relates to the power of Congress under the Commerce Clause, but Fried is the Harvard con law professor—I’m just a dude blogging in my flannels.

Fried goes on to say:

Even if the regulation of inactivity—if that is what it is—is a novelty, its novelty does not count against it. Many—maybe most—regulations of commerce have some aspect of novelty about them.

But, Prof. Fried, some novelties are more novel than others.

The progressive blogosphere is making hay out of the fact that Fried was Ronald Reagan’s Solicitor General (though most recently, he voted for Obama). Fair enough—George H.W. Bush appointed David Souter to the Supreme Court, too. There certainly are plenty of intelligent and credentialed people with liberal jurisprudential views (and also plenty with conservative ones). At the end of the day, it will be up to Anthony Kennedy to take a side.

What clearly is not in dispute, however, is: if the individual mandate is constitutional, there simply isn’t anything that Congress doesn’t have the power to force you to buy. In that spirit, I’ll vote for a law forcing everyone to buy subscriptions to Forbes and National Review.

UPDATE 2: I received this email from a (jurisprudentially conservative) Harvard Law alum who studied under Fried:

It is interesting that Fried is taking the mandate-is-constitutional side. I believe he was very intimately involved in the Lopez case, where the court ruled -- to the shock and dismay of liberal scholars around the country -- there were limits on the Commerce Clause powers after all. I always felt that Lopez was a purely symbolic victory for the idea of limited and enumerated powers. The dissenters made it clear that they would not respect Lopez as precedent, the limit on the Commerce Clause power that the court fashioned was pretty feeble, and the lower courts afterwards showed no willingness to apply the case anyway. After the Raich marijuana case, it seemed that the court had abandoned the idea of striking down Congressional acts on Commerce Clause grounds altogether.

But then came this individual mandate challenge, and it turns out that Lopez may have momentous consequences after all.

Anyway, getting back to Fried, my sense is that, while he once enjoyed being an enfant terrible, he got tired of being cast as the one outspoken HLS conservative/libertarian and decided instead to play the role of Moderate Establishment Sage.

As for my personal opinion of him, I can't say that it is favorable. He enjoys presenting himself to the world as a deeply cultured, literate man, which I suppose he is, but he never misses a chance to put it on display. He also believes very deeply in the aristocracy of lawyers. That is to say, he believes that it is altogether fitting and right that those with an extraordinary knack for distinguishing cases and connecting lines of authority -- that is, highly skilled lawyers -- should have the power to make the most important political decisions in this country.